Nebraska State Bar Association

CONTACT US AT:

635 S.14th Street P.O. Box 81809 Lincoln, NE 65801		ph. (402) 475-7091 (800) 927-0117 fx. (402) 475-7098

NSBA Web Site

The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for April 24, 2008

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Appeal and Error, Jurisdiction, Final Order
Jury, Jury Instructions
Probate, Claim, Timeliness
Prosecutor, Necessity for Special Prosecutor
Trial, Conduct of Trial, Judge, Appeal and Error
Trial, Discovery, Fees for Expert Witness

These Bar Events links give you information about upcoming programs and activities:

May 8, 2008 - NCLE Teleseminar: Ethics of Using Electronic Evidence (Live Replay)
May 12, 2008 - NCLE Teleseminar: Buying and Selling Distressed Small Businesses, Part 1
May 13, 2008 - NCLE Teleseminar: Buying and Selling Distressed Small Businesses, Part 2
May 15, 2008 - NCLE Teleseminar: Real Estate: A Primer on Insurance (Live Replay)
May 16, 2008 - NCLE Estate Planning & Probate Live Replay in Ogallala
Information and Registration Brochure
May 22, 2008 - NCLE Teleseminar: Estate Planning for Prenuptial Agreements (Live Replay)
May 29, 2008 - NCLE Teleseminar: Ethics in Litigation, Part 1 (Live Replay)
May 30, 2008 - NCLE Teleseminar: Ethics in Litigation, Part 2 (Live Replay)
June 6, 2008 - 5th Annual NSBA-CFI Greater Nebraska Golf Tourney, Wildhorse Golf Club of Gothenburg
Register Online
Golfer Registration Form
June 20, 2008 - NCLE Seminar: Making Your Case With a Better Memory
Information & Registration Form

For more information about LUNCH & LEARN SEMINARS, TELESEMINARS and LIVE WEBCASTS and to register contact Kathryn Bellman.

These links provide you with information on existing Member Benefits:

Case Summaries

Appeal and Error, Jurisdiction, Final Order

Back to ShortCuts

As the Nebraska Supreme Court’s review of the action filed here showed that the district court’s dismissal of a number of the claims did not dismiss of them all. The order, therefore, could not be a final order from which appeal might be taken and the appeal was dismissed for lack of jurisdiction.

Poppert v. Dicke, 275 Neb. 562 (2008)

Supreme Court Headnotes

Jurisdiction:

1. Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. ••• Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

Actions:

1. Whether more than one cause of action is stated depends mainly upon (1) whether more than one primary right or subject of controversy is presented, (2) whether recovery on one ground would bar recovery on the other, (3) whether the same evidence would support the different counts, and (4) whether separate causes of action could be maintained for separate relief.

2. Words and Phrases. A “claim for relief within the meaning of Neb. Rev. Stat. § 25-1315 (Cum. Supp. 2006) is equivalent to a separate cause of action, as opposed to a separate theory of recovery. ••• A cause of action consists of the fact or facts which give one a right to judicial relief against another; a theory of recovery is not itself a cause of action.

3. Pleadings. Two or more claims in a complaint arising out of the same operative facts and involving the same parties constitute separate legal theories, of either liability or damages, and not separate causes of action.

Final Orders:

1. Words and Phrases. A final judgment is the functional equivalent of a final order within the meaning of Neb. Rev. Stat. § 25-1902 (Reissue 1995).

2. Appeal and Error. Without a final order, an appellate court lacks jurisdiction and must dismiss the appeal.

Date Filed and Case No.: April 24, 2008. No. S-06-741.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr24/s06-741.pdf

Court Appealed From: District Court for Lancaster County: Paul D. Merritt, Jr., Judge.

Attorneys for the Appeal: R.J. Shortridge, Corey L. Stull, Jeanette Stull, Shawn P. Dontigney, and Derek A. Aldridge, for Glenn Poppert, appellant. John C. Chatelain and John J. Maynard for Bill D. Dicke and Cattlemen’s Nutrition Services, L.L.C. appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, McCormack and Mlller-Lerman, JJ.

Not Participating: Stephan, J.

Authored By: Heavican , C. J.

Summary: Glenn Poppert and Bill D. Dicke organized Cattlemen's Consulting Service, Inc. (CCS). Poppert was a 10-percent equity owner; Dicke was a 90-percent equity owner. Before entering into the business, Poppert sought and received the professional opinion of McDermott and Miller, PC. (McDermott & Miller), an accounting firm, and Donald A. Schaller, a certified public accountant. CCS dissolved in 2000, and Poppert resigned in 2003. Dicke formed Cattlemen’s Nutrition Services, LLC (CNS) in 2004.

Poppert filed an action against Dicke, CNS, McDermott & Miller and Schaller alleging, Poppert alleged 10 discrete "causes of action.” The first three “causes of action” claimed a breach of the duties of loyalty, care, and good faith and fair dealing.

In his fourth “cause of action,” misappropriation of company opportunities, Poppert alleged that Dicke purchased CCS assets piecemeal, acquiring goodwill and trade secrets for insufficient consideration. Poppert’s fifth and sixth “causes of action” alleged that Dicke negligently and fraudulently misrepresented the value of CCS. Poppert’s seventh “cause of action,” unjust enrichment, alleged that Dicke paid himself an excessive salary, failed to distribute earnings, and dissolved CCS for less than fair market value, thus acquiring goodwill and trade secrets for less than fair market value. In his eighth and ninth “causes of action,” Poppert alleged professional negligence and negligent misrepresentation on the part of Schaller and McDermott & Miller, contending that these defendants misrepresented the value of CCS. Poppert’s tenth “cause of action” alleged the misappropriation of trade secrets involving CCS’ secrets’ being given to CNS without proper consideration.

Dicke and CNS filed a motion to dismiss, which was granted in part. In particular, the district court concluded that as to the first three “causes of action”—breach of the duties of loyalty, care, and good faith and fair dealing—no such duties existed. The district court certified its dismissal under Neb. Rev. Stat. § 25-1315(1) (Cum. Supp. 2006), and Poppert appealed assigning that the district court erred in finding that there was no fiduciary duty imposed upon members and managers in a limited liability company.

Was there a “final order” from which an appeal could be taken? For an order appealed from to be certifiable as a final judgment under § 25-1315(1), (1) the case must involve multiple causes of action, as opposed to theories of recovery, and (2) the order must completely dispose of at least one of those causes of action. Here, Poppert’s operative complaint purported to allege 10 discrete “causes of action.” The Nebraska Supreme Court said that further review of the complaint, however, suggested that there are at most only three causes of action.

Poppert’s “causes of action” Nos. 1 through 3, which were dismissed by the order from which Poppert appealed, are instead part of the same cause of action, as the allegations supporting each are effectively identical and more appropriately labeled “theories of recovery.” With respect to these theories of recovery, Poppert alleged that Dicke breached the fiduciary duties of loyalty, care, and good faith and fair dealing by paying himself and others an excessive salary, failing to distribute earnings, selling CCS’ assets piecemeal to himself rather than preserving its goodwill by selling as an ongoing business, and operating a competing business at the same time as he was a CCS member.

“Causes of action” Nos. 8 and 9, directed at defendants Schaller and McDermott & Miller, are also just different theories of recovery for the same single cause of action and therefore compose Poppert’s second cause of action. Poppert alleges in these theories of recovery that Schaller and McDermott & Miller engaged in professional malpractice and negligent misrepresentation when each defendant allegedly overrepresented the value of CCS at formation. And arguably, “causes of action” Nos. 5 and 6, while directed at Dicke, are coextensive with “causes of action” Nos. 8 and 9, as all four allege that Poppert was deceived about the capitalization and value of CCS.

But the Court found most importantly, “causes of action” Nos. 1 through 3 are coextensive with “causes of action” Nos. 4, 7, and 10. The same operative facts support all six of these theories of recovery: Dicke allegedly paid excessive salaries, did not pay Poppert cash distributions, and sold the business to himself piecemeal so as to acquire its goodwill and trade secrets without paying fair market value. “Causes of action” Nos. 1 through 4, 7, and 10 are, in fact, all theories of recovery for the same underlying cause of action. The district court’s order dismisses some of those theories of recovery, i.e., “causes of action” Nos. 1 through 3, but does not dismiss all of them.

“In short,” wrote the Court “the district court’s order was not a ‘final order’ ... as to one or more but fewer than all of the causes of action.” To be appealable, an order must satisfy the final order requirements of §§ 25-1902 and 25-1315(1). Since the judgment did not dispose of the entirety of any one claim for relief, it could not be made an appealable judgment by recourse to § 25-1315(1). And without a final order, the Court said that it lacked jurisdiction and must dismiss the appeal.

Conclusion: The trial court did not have the authority to certify the order appealed from as a final judgment, as that order disposes of three theories of recovery for a particular cause of action, but did not dispose of three other theories of recovery for the same cause of action. APPEAL DISMISSED.

Gerrard, J., CONCURRING wrote that while he agreed completely with the Court's analysis of the jurisdictional issue presented in this appeal, and joined the Court's opinion he wrote separately to comment on these proceedings, in the hope of limiting similar jurisdictional defects in future cases.

Here, the district court certified this appeal as a final judgment on its own motion. Despite the fact that a party aggrieved by a certified final judgment may be required to perfect a timely appeal from that judgment to preserve a claim of error, sua sponte certification of a final judgment is generally considered to be within a trial court's discretion. “This discretion, however, should be exercised sparingly by trial courts” said Justice Gerrard. The purpose of Neb. Rev. Stat. § 25-1315(1) (Cum. Supp. 2006) is to make interlocutory review available in the "infrequent harsh case" in which the general policy against piecemeal appeals is outweighed by the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case.

Because certification is primarily intended to serve the needs of the parties, it would be preferable for a trial court to seek the input of the parties before proceeding to certify a judgment, because factors unknown to the court may affect the equities of certification.

“I note, for the benefit of future litigants, that because a certified judgment is considered final for all purposes, a party can ask a trial court to reconsider a decision to certify a final judgment, with a timely motion to alter or amend the certified judgment.6 This presents parties with a way to present jurisdictional or prudential concerns to the trial court, even after a final judgment has been certified.”

Jury, Jury Instructions

Back to ShortCuts

This long malpractice trial resulting from a dental treatment, delves into questions of mistrial, jury misconduct, discovery fees and payments for depositions of experts.

Malchow v. Doyle, 275 Neb. 530 (2008)

Supreme Court Headnotes

Trial:

1. Appeal and Error. A trial judge has broad discretion over the general conduct of a trial; therefore, an appellate court reviews complaints about trial conduct for abuse of discretion. ••• The standard of review of a trial court’s determination of a request for sanctions is whether the trial court abused its discretion.

Motions for Mistrial:

1. A mistrial is appropriate when an event occurs during the course of a trial which is of such a nature that its damaging effects would prevent a fair trial.

2. Appeal and Error. A motion for mistrial is directed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of abuse of that discretion.

Appeal and Error.

1. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

Jury Instructions:

1. Appeal and Error. Jury instructions do not constitute prejudicial error if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence.

Pretrial Procedure:

1. Appeal and Error. On appellate review, decisions regarding discovery are generally reviewed under an abuse of discretion standard.

Judges:

1. Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system.

Date Filed and Case No.: April 24, 2008. No. S-06-219.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr24/s06-219.pdf

Court Appealed From: District Court for Gage County: Paul W. Korslund, Judge.

Attorneys for the Appeal: Vincent M. Powers and, on brief, Alan L. Plessman for Nelvadene Malchow, appellant and cross-appellee. Patrick G. Vipond, Kyle Wallor, and John M. Walker for Dean l. Doyle, D.D.S., appellee and cross-appellant.

Justices: Heavican, C.J., Wright, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Participating on Briefs: Connolly, J.

Authored By: Per Curiam.

Summary: Nelvadene Malchow brought this professional negligence action against Dean L. Doyle, D.D.S. Doyle was Malchow’s dentist, and in July 1997, he placed a dental implant in her mouth that would allow the permanent implant of prosthetic teeth. After the implant, Malchow suffered from swelling, pain, and repeated infections for several years because Doyle allegedly improperly inserted the device. On February 26, 2002, during removal of part of the dental implant, Doyle fractured the right side of Malchow’s mandible and she underwent emergency surgery at the University of Nebraska College of Dentistry in Lincoln and was then referred to the University of Nebraska Medical Center in Omaha, Nebraska. There, she underwent additional surgeries to repair the fracture and reconstruct the mandible.

Malchow brought this action, alleging that she sustained injuries as the result of Doyle’s insertion and later removal of the implant. In her amended complaint, Malchow sought recovery for hospital, medical, and dental costs and services that exceeded $145,000. Doyle’s answer asserted that Malchow’s claims were barred by the statute of limitations, that the complaint failed to state a claim upon which relief could be granted, and that he had met the applicable standard of care in the treatment rendered to Malchow.

After a 5-day trial, the jury returned a verdict in favor of Doyle, finding that Malchow had not met her burden of proof. Malchow moved for new trial and judgment notwithstanding the verdict, and Doyle filed a motion for reconsideration. The district court overruled the motions. Malchow appealed, and Doyle cross-appealed.

Did the district court err in its imposition of a time table for the trial? Malchow argued that the district court imposed “an unnecessary, unreasonably ambitious and daunting time table [sic] for the trial,” which denied her a fair trial, and that the parties, the jury, and counsel “became prisoners to the trial court’s unreasonable trial schedule.” Malchow, thus, contended that the trial schedule prejudiced the jury against her.

The Court wrote that Malchow did not provide any precedent showing that the trial schedule on the parties was “daunting,” citing only the Court’s definition of a judicial abuse of discretion. Reviewing Malchow’s claims for an abuse of discretion, the Court noted that on the fourth day of trial, the district court expressed its frustration at the time the trial was taking and stated it was concerned that the time estimates given by Malchow had been incorrect. The Court felt that statements in the record implied that Malchow’s counsel had previously attempted to extend the time of trial in order to call an expert witness who was not available until the following week. The district court allowed more time for Malchow’s case in chief than had originally been discussed among the parties. Under the circumstances presented, the Court said that Malchow was responsible for the extra time that was required of the jury. As such they concluded that the court did not abuse its discretion in extending the length of the trial days.

Did the district court abuse its discretion in overruling the several motions for mistrial that Malchov made during the trial? Again, the Court wrote that a motion for mistrial is directed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of abuse of that discretion. Here, Malchow had moved for mistrial because she felt that due to the time constrictions imposed by the court, she had not been able to present the evidence that she needed to fully meet her burden of proof. In the case at bar, the trial was conducted over a 5-day period and 62 hours were devoted to the trial. The Court said that the record did not show that either party was restricted in the presentation of its evidence.

The Court said that Malchow had not demonstrated that she was prejudiced in presenting her case based on the length of each trial day, and she was not entitled to an inference that the jury resented her because of the length of the trial. The Court therefore concluded that the district court did not arbitrarily place time limits on either party or restrict the presentation of evidence. “Thus, the court did not abuse its discretion in overruling any motions for mistrial on the basis of the conduct of the trial.”

Did the district court abuse its discretion in refusing to assemble the jury to investigate claims of juror misconduct? During the hearing on the motion for new trial, Malchow asked the court to gather the jurors to question them about the verdict (based on Malchow’s claim that the jurors were unduly influenced by the jury foreperson, who allegedly repeatedly told the jury that the proof had to be beyond a reasonable doubt to find in Malchow’s favor.) While § 27-606(2) precludes a juror testifying as to any matter or statement occurring during the course of the jury’s deliberations, a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention.” Malchow claime that the jury foreperson’s incorrect statement concerning the burden of proof was extraneous information, did not relate to any statement made during the jury’s deliberations and therefore the jurors should have been able to testify about it.

Here, the jury was instructed by the court that Malchow’s burden of proof was to show, by the greater weight of the evidence, that Doyle was negligent. The Court found that the district court did not abuse its discretion in failing to conduct a hearing to question the jurors about their verdict, and this assignment of error had no merit.

Doyle’s cross-appeal.

Did the district court err when it ordered Doyle to pay certain fees for Malchow’s expert witnesses? [Expert witness, Burton.] In the initial discovery in the case, the district court overruled Malchow’s objections to several interrogatories submitted by Doyle to Malchow’s expert witnesses. However, the court had ordered Doyle to pay Malchow’s expert witnesses to respond, if, after being informed of the estimated charges, Doyle still wished to obtain the responses. While Malchow provided the required estimation, no response was received from Doyle.

Later, when Doyle served notices of deposition on two of Malchow’s other expert witnesses, Burton and Malchow. Burton was deposed and submitted a bill of $3,000. Doyle’s attorney paid $2,000 but refused to pay the other $1,000 (for review of materials, answers to the interrogatories, and other research in preparation for the deposition.) Malchow moved to compel Doyle to pay those fees pursuant to Neb. Ct. R. of Discovery 37 claiming that by deposing such witnesses, Doyle was attempting to obtain the same information by deposition that he had previously sought through written discovery. Doyle argued he should not be required to pay for the trial preparation of Malchow’s expert. In addition, because the issue had previously been ruled on in the court’s order, Malchow claimed that Doyle should be ordered to pay Malchow’s attorney fees incurred in filing the motion to compel.

The district court ordered Doyle to pay the entire amount billed but overruled Malchow’s request for attorney fees. Under the circumstances presented, the Court ruled that the court did not abuse its discretion in ordering Doyle to pay Burton’s charges of $3,000.

[Expert Witness Miloro.] The remaining question is whether Doyle should have been required to pay Miloro for 12 hours of preparation for a 2-hour deposition that was requested by Doyle but was never taken because Miloro was not paid in advance.

Each party moved for a protective order regarding the fees charged by Miloro. Doyle had been advised that several of Malchow’s expert witnesses required a fee of $1,000 to $1,500 at least 1 week in advance of the deposition. Miloro’s deposition was scheduled for 2 hours, but Miloro canceled it when Doyle did not pay $1,500 at least 1 week in advance. Doyle alleged that Miloro’s charges were unreasonable. Subsequent to the cancellation, Miloro demanded a total of $7,500. In addition to $1,500 for the deposition, Miloro claimed he had incurred 12 hours of preparation he did despite Doyle’s not paying the $1,500 advance. In spite of not being paid, Miloro said he felt it necessary to review the records in the event that all parties appeared for the deposition.

The district court ordered that Doyle was responsible for Miloro’s “time for the deposition to be taken the morning of August 29,” but which did not occur because of nonpayment by Doyle. The court also overruled Doyle’s motion for a protective order. (The Court denied Doyle’s application for leave to file an original action in their court seeking a writ of mandamus relating in part to the $6,000 charge for Miloro’s deposition preparation time.)

Malchow again brought the issue of Miloro’s $7,500 charge before the district court. When it appeared that Miloro would not testify (despite the fact that Malchow had paid him for his time ) and “would fill up his calendar if he was not paid the $7,500 immediately and that he would not testify at trial, which was scheduled at that time to begin the following week” the court ordered Doyle to pay $7,500 to Miloro no later than 5 p.m. that following Monday.

The Court said that the question of whether time spent by Miloro in responding to discovery should include his time preparing for a deposition is left to the discretion of the trial court. In this case, Doyle did not pay certain specified fees to Miloro in advance as agreed upon, which resulted in the deposition’s being canceled. Here. the Court concluded that the district court abused its discretion in ordering Doyle to pay the $6,000 charged by Miloro as compensation for time he spent preparing for the deposition. Miloro was Malchow’s witness, and he was scheduled to testify on the third day of the trial. “Whether Miloro needed to spend 12 additional hours to prepare for a 2-hour discovery deposition by Doyle is not the question, but, rather, whether Doyle should have been ordered to pay such charges” they wrote. “We conclude that the district court’s order on this issue was in error. We therefore modify that portion of the judgment in order to tax $6,000 as additional costs to Malchow.”

Did the district court abuse its discretion in sanctioning Doyle for the failure to provide items asked for in a subpoena duces tecum? Malchow issued Doyle a notice for deposition and a subpoena duces tecum, asking Doyle to provide the following materials: “[a]ll records, documents, billings, and other tangible things in your possession or control” pertaining to Malchow, including but not limited to x rays. As Doyle’s deposition began, he was asked whether he brought those items requested in the subpoena duces tecum. Doyle stated that he had brought all documents pertaining to Malchow, x rays, and the instruments used for the surgery. Two depositions were taken.

In Malchow’s motion for sanctions under rule 37, she alleged that she had learned that an exhibit contained the “right strut of the Malchow subperiosteal implant,” which had never before been produced by Doyle or properly made a part of the contents of the exhibit. Malchow claimed that the strut was added to the exhibit while it was in the possession of Doyle or his counsel. The district court found that Doyle was negligent in failing to produce the strut and models related to his treatment of Malchow at either of his depositions. Pursuant to the subpoena duces tecum, Doyle was required to bring all “tangible things” to the deposition. The court found it appropriate to impose sanctions in the amount of one-half of the costs of the subsequent depositions and Malchow’s attorneys’ preparation time for those depositions. (Doyle was ordered to pay $7,717.50 in attorney fees and $685.58 in expenses to Malchow’s counsel as sanctions.)

The Court ruled that the subpoena duces tecum directed Doyle to bring with him “[a]ll records, documents, billings, and other tangible things in your possession or control” pertaining to Malchow, including but not limited to x rays. (Emphasis supplied.) The models would certainly fall within the definition of “other tangible things.” Thus, they ruled that the district court did not abuse its discretion in sanctioning Doyle for the failure to provide the models until 16 months after the subpoena duces tecum was issued.

Conclusion: The judgment of the district court was affirmed as modified in accordance with this opinion. AFFIRMED AS MODIFIED.

Probate, Claim, Timeliness

Back to ShortCuts

This case before the Nebraska Supreme Court presented several issues relating to a claim filed against an estate of a decedent. The Court was first asked to determine whether crop services provided to the estate are administration expenses under Neb. Rev. Stat. § 30-2485(b) (Reissue 1995). If so, then the service provider’s claim should be allowed, because under § 30-2485, no statute of limitations barred the claim. However, if the claim was not for administration expenses, the Court was presented with the question of whether the service provider’s “Demand for Notice” or, alternatively, the filing of this suit in district court, operated as a timely claim under Neb. Rev. Stat. § 30-2486 (Reissue 1995). As the Court found that the services were not an administrative expense, it found that the claims were not timely filed.

J.R. Simplot Co. v. Jelinek, 275 Neb. 548 (2008)

Supreme Court Headnotes

Statutes:

1. Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

Equity:

1. Jurisdiction: Appeal and Error. The correct standard of review for a trial court’s exercise of equity jurisdiction is de novo on the record, with independent conclusions of law and fact.

Decedents' Estates:

1. Executors and Administrators. A personal representative’s duty is to act on behalf of an estate with the end goal of distributing and closing that estate.

2. Notice: Claims. Mere notice to a representative of an estate regarding a possible demand or claim against the estate does not constitute presenting or filing a claim under Neb. Rev. Stat. § 30-2486 (Reissue 1995).

Open Accounts:

1. Actions. An action on account or open account is appropriate where the parties have conducted a series of transactions for which a balance remains.

2. Limitations of Actions. In an action on an open account, where the dealing between the parties was continuous, each succeeding item is applied to the true balance, and the latest item of the account removes prior items from the operation of the statute of limitations. ••• Not every entry in an open account is an item that restarts the applicable statute of limitations.

Estoppel.

1. The elements of equitable estoppel are, as to the party estopped: (1) conduct which amounts to a false representation or concealment of material facts, or at least which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. As to the other party, the elements are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his or her injury, detriment, or prejudice.

Date Filed and Case No.: April 24, 2008. No. S-06-666.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr24/s06-666.pdf

Court Appealed From: District Court for Box Butte County: Paul D. Empson, Judge.

Attorneys for the Appeal: David A. Dudley and Jacob P. Wobig for J.R. Simplot Company, appellant. Terry Curtiss for James Jelinek, as Personal Representative of the Estate of Edward F. Jelinek, Deceased, and Individually, et al., appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Heavican , C. J.

Summary: Edward F. Jelinek passed away testate on May 21, 1999, leaving an estate primarily consisting of approximately 4,500 acres of farmland and James Jelinek was named personal representative. Edward’s will specifically authorized the personal representative to keep the administration of his estate open for up to 15 years and directed that the farming operation on the estate should be continued during that time.

In 1999, crops located on land owned by the estate suffered significant hail damage and were uninsured. The loss lead to insufficient funds to pay operating debt due in 1999 and the lender declined to provide further financing of the estate’s operations. New financing was obtained through a lender which required the estate to specifically request and approve goods or services which the lender purchased and then sold to the estate at a markup.

At this same time, crop services were provided to the estate by J.R. Simplot Company (Simplot). The estate’s account with Simplot was also changed to cash on delivery and during the 3 years at issue, there were times when the lender would not approve certain requests made by James on behalf of the estate. Given the payment status at Simplot, the estate could not itself contract for the goods or services but Simplot’s local branch manager continued to provide certain goods and services to the estate. The payment status was circumvented as the manager simply kept track of the goods and services provided, but issued no invoices (the manager was aware that he was dealing with James in James’ capacity as personal representative for Edward’s estate.)

When the circumvention was discovered invoices of $174,504.98 were issued and the invoice was not paid. James said that he would not pay the bill because he claimed a lower yield during the 2000 growing season occurred due to the spraying of an herbicide recommended by Simplot which he estimated cost approximately $150,000 to $160,000. James refused to pay the Simplot bill despite acknowledging that at least some of the goods and services were provided.

On June 10, 2003, Simplot filed a “Demand for Notice” in the county court for Box Butte County. On March 25, 2004, Simplot filed this suit against the estate in Box Butte County District Court. The estate denied it was liable and asserted a cross-claim against Simplot for $175,085.09 for damages to the estate’s 2000 crop. That cross-claim was later dismissed by the district court. On May 16, 2006, the district court dismissed Simplot’s claim, finding the claim was barred by the statute of limitations set forth in § 30-2485. The district court also found Simplot’s “Demand for Notice” did not qualify as a claim under § 30-2486. Simplot appealed.

On appeal, Simplot’s basic contention, broadly stated, is that the district court erred in concluding that its claim was barred by the statute of limitations set forth in § 30-2485(b). Section 30-2486 provides a framework for analyzing this assertion. That section provides that someone with a claim against an estate may present it in one of two ways. Under § 30-2486(1), the claim may be filed with the probate court. Alternatively, under § 30-2486(2), a claimant may file suit to recover the amount of the claim, so long as the suit is filed within the time period provided for filing the claim with the estate.

Jones v. Shelter Mut. Ins. Cos., 274 Neb. 186, 738 N.W.2d 840 (2007). Hornig v. Martel Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000).

The time period for filing claims with the estate is set forth in § 30-2485(b). That section generally provides that with respect to claims arising at or after the death of the decedent, as is presented in this case:

All claims, other than for administration expenses, against a decedent’s estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:

(1) A claim based on a contract with the personal representative, within four months after performance by the personal representative is due;

(2) Any other claim, within four months after it arises.3

Did the court err in not determining that Simplot’s claim was an administrative cost against the estate? In its first assignment of error, Simplot argued that its claim was an administration cost and, under § 30-2485(b), did not need to be filed with the probate court within the 4-month time period, given the possibility of a long-term administration of the estate. Here, the crop services Simplot said that it provided were necessary to maintain the cropland, were incurred in the administration of the estate, and therefore were administration expenses as envisioned by § 30-2485(b).

The Court noted that the current Nebraska Probate Code differs from the Uniform Probate Code in one particular way significant to their analysis in this case. While the Uniform Probate Code requires all claims to be filed with the estate or the probate court, § 30-2485 (b) specifically exempts administration expenses from such requirement. The term “administration expenses” is not defined in the probate code and Simplot contented that its claim constituted an administration expense.

The Court said that Simplot’s argument suffered from a fatal flaw. “If the crop services Simplot provided are properly considered administration expenses, such ignores altogether § 30-2485(b)(l), which provides for the 4-month claim period for ‘[a] claim based on a contract with the personal representative . . . .’” The Court said that if it were to adopt Simplot’s reasoning § 30-2585(b)(l) would be rendered virtually meaningless as generally, each and every contract entered by the personal representative is intended to assist the personal representative in his or her administration of the estate. Under Simplot’s reasoning, all of those expenses could reasonably be construed as administration expenses, resulting in a situation in which it would rarely, if ever, be necessary for someone to actually file a claim with the probate court.

With further reasoning for its holding set out more fully in the opinion, the Court rejected Simplot’s contention that its claim was for administration expenses. “Such a conclusion is supported by our prior case law on administration expenses in general and also by the purposes behind § 30-2485(b). As such, Simplot’s first assignment of error is without merit. Because the expenses in question were not administrative, Simplot was required under §§ 30-2485(b)(l) and 30-2486 to file a claim with the probate code within 4 months.”

Were Simplot’s claims timely filed? Simplot argues that its June 10, 2003, “Demand for Notice” qualified as a claim under § 30-2486(1). Reviewing the statute, the Court ruled that the “Demand for Notice” filed on June 10, 2003, did not qualify as a statement of claim under § 30-2486(1). The record revealed no other filings which might otherwise qualify as a statement of claim filed with respect to amounts owed to Simplot.

The Court further found that Simplot’s filing of suit did not qualify as claim under § 30-2486(2) (“within four months after performance by the personal representative is due.”) The record in this case shows the estate was billed for services provided to it on February 26, 2003, with a due date of March 20, and again on March 26, with a due date of April 20. Under §§ 30-2485 and 30-2486(2), suit had to be filed within 4 months of the date the underlying obligation was due. While the estate’s account with Simplot was an open account and further contracting for and the receipt of services is an affirmative action by a debtor (recognition and acknowledgment of the entire debt) which would toll the 4 month limitation. However, the Court found that simply being charged a finance charge on amounts already owed requires no affirmative action by a debtor, and as such, it should not be treated as a debtor’s recognition and/or acknowledgment of a debt sufficient to toll the applicable statute of limitations. Simplot acknowledged that suit was not filed until March 25, 2004, approximately 1 year after the estate was first billed and well outside the 4 months permitted under § 30-2485. Therefore, Simplot’s suit did not qualify as a claim under § 30-2486(2).

Was Simplot entitled to equitable relief? Simplot argued that even if it was found to have not filed a claim, “the Estate should be estopped from asserting the statute of limitations as a defense to Simplot’s claim.” The basis for this contention is the alleged deception perpetrated against it when Simplot’s local branch manager failed to invoice the estate for services provided by Simplot. Assuming the doctrine of equitable estoppel is available in actions such as this, the Court concluded that Simplot has not shown the estate should be estopped from arguing the application of § 30-2485. What Simplot failed to show is how it changed its position as a result of the alleged concealment by the manager.

Conclusion: The Court ruled that the crop services for which Simplot sought payment are not “administration expenses” under § 30-2485. As such, it was necessary that Simplot file either a claim or a lawsuit within 4 months from when the sums were due. Since Simplot failed to do either, it is barred from recovering any amounts due. The district court did not err in dismissing Simplot’s claim. AFFIRMED.

Prosecutor, Necessity for Special Prosecutor

Back to ShortCuts

In this case, the Nebraska Supreme Court reviews the standards to determine whether a prosecutor’s office should be replaced by a special prosecutor, where an attorney with the office had previously been employed by the office of defendant’s attorney.

State v. Kinkennon, 275 Neb. 570 (2008)

Supreme Court Headnotes

Prosecuting Attorneys:

1. When a disqualified attorney is effectively screened from any participation in the prosecution of a defendant, the prosecutor’s office may, in general, proceed with the prosecution. ••• What constitutes an effective procedure for screening a disqualified lawyer from the prosecution of a defendant will depend on the particular circumstances of each case. At a minimum, the disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the office with respect to the matter. The other lawyers in the office who are involved with the matter should be informed that the screening is in place and that they are not to discuss the matter with the disqualified lawyer. ••• In order to be effective, procedures for screening a disqualified lawyer from the prosecution of a defendant must be implemented as soon as practical after the lawyer or a government office employing the lawyer knows or reasonably should know that screening is needed.

2. Appeal and Error. A motion for the appointment of a special prosecutor is addressed to the discretion of the trial court, and absent an abuse of discretion, a ruling on such a motion will not be disturbed on appeal.

Sentences:

1. When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.

2. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

Trial:

1. Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

Constitutional Law:

1. Self-Incrimination. The Fifth Amendment right to be free from self-incrimination is a personal right of the witness.

Date Filed and Case No.: April 24, 2008. No. S-07-654.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr24/s07-654.pdf

Court Appealed From: District Court for Buffalo County: Teresa K. Luther, Judge.

Attorneys for the Appeal: Mitchel L. Greenwall for Chad Kinkennon, appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Gerrard, J.

Summary: Chad Kinkennon was charged by amended complaint with one count of possession of methamphetamine with intent to deliver, one count of possession of a controlled pharmaceutical substance without a prescription, one count of possession of a controlled substance other than marijuana without a valid prescription, and possession of cocaine.

On August 4, 2006, the court appointed Heather Swanson-Murray, of the law firm Yeagley Swanson Murray, L.L.C., to serve as counsel for Kinkennon. Yeagley Swanson Murray represented Kinkennon from that date forward, through his May 10, 2007, sentencing and the filing of the present appeal on June 8. Mandi Schweitzer was employed as an associate attorney with Yeagley Swanson Murray at the time Swanson-Murray was appointed to represent Kinkennon. Schweitzer remained an employee of the firm through January 19, 2007; on January 22, she began employment with the prosecuting attorney’s office as a deputy county attorney.

On February 26, 2007, Kinkennon filed a motion for appointment of a special prosecutor alleging a conflict of interest by virtue of Schweitzer’s previous association with Yeagley Swanson Murray and current association with prosecution. Following a hearing on the motion, the district court denied Kinkennon’s motion for appointment of a special prosecutor, and the case proceeded to trial.

At trial, Kinkennon called as a witness Caroline Callaghan, a woman who was living with Kinkennon at the time the police executed the search where items were discovered which lead to the charges against Kinkennon. Prior to Callaghan’s testimony, the trial judge instructed Callaghan that if she believed the testimony she was about to give would incriminate her, she was “at liberty not to testify” and could “invoke her Fifth Amendment right.” She was further instructed that her testimony could be used against her and that if she chose to begin testifying, she would have to complete her testimony. Callaghan stated that she understood and chose to testify. Callaghan then testified and admitted on direct examination to, among other things, using methamphetamine. On cross-examination, the State asked Callaghan how long she had been an intravenous drug user. Callaghan responded by stating, “I plead the Fifth on that.” Callaghan was allowed to speak with an attorney during a short recess. When the trial reconvened, Callaghan was cross-examined and did not assert her Fifth Amendment privilege, nor did counsel for Kinkennon object during cross-examination of Callaghan.

The district court convicted Kinkennon of one count of possession of methamphetamine with the intent to deliver and one count of knowingly or intentionally possessing cocaine. The matter proceeded to sentencing and the presentence investigation report indicated that Kinkennon has a lengthy criminal history including, among other things, multiple convictions for assault and possession of marijuana. Kinkennon was sentenced to 8 to 12 years’ imprisonment for possession of methamphetamine with the intent to deliver and to a concurrent term of 20 months’ to 5 years’ imprisonment for possession of cocaine. Kinkennon appealed.

Did the district court err in denying Kinkennon’s motion for appointment of a special prosecutor? The Nebraska Supreme Court had not previously addressed whether an entire prosecutor’s office should be disqualified when one attorney, after joining the prosecutor’s office, is alleged to have been involved in the representation of a defendant on charges being prosecuted at the time the attorney joined that office. The Court’s research showed that an overwhelming majority of courts to have considered this issue have rejected a per se “disqualification” rule and instead have adopted a less stringent rule, pursuant to which the trial court evaluates the circumstances of a particular case and then determines whether disqualification of the entire office is appropriate.

Under this approach, courts consider, among other things, whether the attorney divulged any confidential information to other prosecutors or participated in some way in the prosecution of the defendant. The prosecuting office need not be disqualified from prosecuting the defendant if the attorney who had a prior relationship with the defendant is effectively isolated from any participation or discussion of matters concerning which the attorney is disqualified. If impropriety is found, however, the court will require recusal of the entire office. The Court agreed with this view.

Turning to Kinkennon’s argument that the entire prosecutor’s office should have been, per se, disqualified, the Court had to determine whether or not, under the particular facts of this case, it should have been. Based on the affidavits submitted by the parties, the Court found it unclear exactly what, if any, information Schweitzer acquired relating to Kinkennon’s case before she joined the prosecutor’s office. They concluded, however, that even assuming Schweitzer had acquired some limited knowledge of Kinkennon’s case, there was nothing in the record to suggest, nor did Kinkennon allege, that any of this information was communicated by Schweitzer to the prosecutor’s office to aid in the prosecution of this case. Nor was there any evidence in the record to indicate that Kinkennon’s defense was prejudiced, or even affected, by Schweitzer’s employment with the prosecutor’s office. Given the record before them, the Court could not conclude that the district court abused its discretion in denying Kinkennon’s motion for appointment of a special prosecutor.

Did the district court commit reversible error by failing to properly instruct the defense witness, on Fifth Amendment privilege? The Court said that this argument failed for two reasons. First, Kinkennon did not object during trial to what he now assigns as error on appeal. Second, “and more importantly,” Kinkennon lacks standing to challenge the alleged violation of Callaghan’s rights under the Fifth Amendment.

Were Kinkennon’s sentences excessive and did the district court fail to properly consider the factors relevant to his sentencing? Kinkennon’s presentence investigation report revealed an extensive criminal record. At sentencing, the court explained that “[t]he information provided by [Kinkennon] indicates that [he] is really not even coming to the threshold of understanding or being of a mindset that he really truly seeks a rehabilitative program.” The Court agreed with this assessment. “The district court reviewed the record, considered the appropriate sentencing factors, and imposed sentences within the statutory limits. Based on our review of the record, we conclude that the district court did not abuse its discretion in sentencing Kinkennon.”

Conclusion: For each of the foregoing reasons, the Court affirmed the judgment of the district court. AFFIRMED.

Trial, Conduct or Trial, Judge Appeal and Error

Back to ShortCuts

This long malpractice trial resulting from a dental treatment, delves into questions of mistrial, jury misconduct, discovery fees and payments for depositions of experts.

Malchow v. Doyle, 275 Neb. 530 (2008)

Supreme Court Headnotes

Trial:

Motions for Mistrial:

1. A mistrial is appropriate when an event occurs during the course of a trial which is of such a nature that its damaging effects would prevent a fair trial.

2. Appeal and Error. A motion for mistrial is directed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of abuse of that discretion.

Appeal and Error.

1. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

Jury Instructions:

Pretrial Procedure:

1. Appeal and Error. On appellate review, decisions regarding discovery are generally reviewed under an abuse of discretion standard.

Judges:

Date Filed and Case No.: April 24, 2008. No. S-06-219.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr24/s06-219.pdf

Court Appealed From: District Court for Gage County: Paul W. Korslund, Judge.

Justices: Heavican, C.J., Wright, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Participating on Briefs: Connolly, J.

Authored By: Per Curiam.

Doyle’s cross-appeal.

Conclusion: The judgment of the district court was affirmed as modified in accordance with this opinion. AFFIRMED AS MODIFIED.

Trial, Discovery, Fees for Expert Witness

Back to ShortCuts

This long malpractice trial resulting from a dental treatment, delves into questions of mistrial, jury misconduct, discovery fees and payments for depositions of experts.

Malchow v. Doyle, 275 Neb. 530 (2008)

Supreme Court Headnotes

Trial:

Motions for Mistrial:

1. A mistrial is appropriate when an event occurs during the course of a trial which is of such a nature that its damaging effects would prevent a fair trial.

2. Appeal and Error. A motion for mistrial is directed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of abuse of that discretion.

Appeal and Error.

1. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

Jury Instructions:

Pretrial Procedure:

1. Appeal and Error. On appellate review, decisions regarding discovery are generally reviewed under an abuse of discretion standard.

Judges:

Date Filed and Case No.: April 24, 2008. No. S-06-219.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr24/s06-219.pdf

Court Appealed From: District Court for Gage County: Paul W. Korslund, Judge.

Justices: Heavican, C.J., Wright, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Participating on Briefs: Connolly, J.

Authored By: Per Curiam.

Doyle’s cross-appeal.

Conclusion: The judgment of the district court was affirmed as modified in accordance with this opinion. AFFIRMED AS MODIFIED.